Victim confidentiality agreements, demanded by the Catholic Church, and other organisations, remain a very real problem.

It is a physical law that all things follow the path of least resistance. Lightning bolts going to the ground, and rivers wriggling to the sea, are examples of this principle. People tend, also, to follow this pattern. If there is any doubt about the enforceability of confidentiality clauses, people will tend to take the safer path of assuming they are valid constraints on them. Many will not take the chance of being sued by the church.

The NSW enquiry into clerical child sexual abuse in the Newcastle district has revealed that a victim was made to sign a confidentiality agreement involving not only return of the compensation, but also with 10% annual interest on it, for any breach. Truly, this is a confidentiality agreement from hell.

The attitude of the churches is given in the following opinion (see ref. 12, below): “Individuals have a fundamental right of contract, and the women who made these deals [concerning clerical abuses] took the money, promising to be quiet, then hurt the person whose silence the association thought it had bought. One can’t have it both ways. Either make the claim public, or take the money to be quiet. You can’t have both. A deal is a deal.”

There have been cases in other countries where the Catholic Church has sued for disclosure of confidentiality agreement contents. For example, a Father Corapi sued his victim (see ref. 13, below). In another case, in New Jersey, when the man to be released from the confidentiality agreement, lawyers for the church threatened to sue him for the return of the seven-figure settlement and to seek financial damages on top of that if he spoke out. Eventually, the church sued the man’s lawyer for breaching the confidentiality agreement for disclosing the settlement amount (see ref. 17, below)

There have also been a few cases where people have broken the agreement with no apparent consequences. In one U.S. case, the archdiocese had paid two brothers $20,000 each in a “confidential settlement” that required them to stay silent — but when they learned that the abuser was still working at the parish, they broke the confidentiality agreement and told their story (see ref. 19, below).

In a Canadian case involving the Boy Scouts (see ref. 20, below), a former Toronto boy scout broke years of silence about a confidentiality agreement he signed with the Boy Scouts of Canada, saying he’d feel “victimized again” if he stayed mum on the secret deal. Like most of the victims who signed confidentiality agreements, he was forbidden from publicly disclosing the amount of the settlement or even that a settlement was reached. As the CBC-TV noted, the agreements may, “in the mind of a victim”, prevent them from mentioning the abuse to others, including police.

In yet another U.S. case (see ref. 23, below), a victim of a Xavier Missionary Father, agreed to a confidentiality clause because he was promised the offender would be kept away from children. When he found out the offender was, in fact, still working with children, he broke the agreement to CBS news. He says he is “glad he broke the agreement”.

In an Australian case, Bishop Michael Malone issued a formal apology to Peter Gogarty who accepted compensation of $30,000, on the condition he sign a confidentiality agreement. He has repeatedly breached this clause (see ref. 24, below).

Legal opinion on the legitimacy of these agreements varies. Most agree that the Victorian Parliamentary enquiry, and the Royal Commission, can over-rule them. However, it is not clear if the victim is still liable for disclosures outside the confines of the enquiries. In this case, people will be forced to take the path of least resistance, which is exactly what the offending organisations will be hoping will happen.

One victim, a Mr Alexander, has said he has sought different legal opinions on the matter with some lawyers saying there could be a conflict (see ref. 3, below). The Law Council of Australia is concerned that legal settlements signed by victims may prevent them from giving evidence at the Royal Commission. It says legislation may be needed to protect survivors who risk breaching old legal agreements. The Law Council of Australia’s Justin Dowd says that such agreements are binding (see ref. 5, below). Some indications have come from Catholic Church spokespersons that victims will need to apply for permission to have agreements waived (see ref. 25, below).

Many other legal sources say that the agreements would not stand up in court for many diverse reasons.

Since the agreements inhibit victims, it is not surprising that the churches try to cloud the issue. One spokesman has said (see ref. 4, below) that victims of clergy sexual abuse who signed confidentiality agreements with the Catholic Church as part of their settlements must apply to the church for permission to give evidence at the Victorian parliamentary inquiry into church abuse.

Back in 2002, Cardinal Pell gave this interview to Richard Carlton (see ref. 8, below):

RICHARD CARLTON: If words have meaning Sir, you bought their silence or you sought to buy their silence, a realistic alternative to litigation that will otherwise be strenuously defended.

GEORGE PELL: Yes if they want to go to law we will use the law to defend ourselves.

RICHARD CARLTON: And you swear them to secrecy.

GEORGE PELL: Well we ask them to keep . . .

RICHARD CARLTON: You swear them, don’t ask them, you swear them.

GEORGE PELL: There is a requirement that they don’t talk about it and most of them are happy not to and if they don’t want to use that they can do something else.

RICHARD CARLTON: They can go to the courts.

GEORGE PELL: Yes.

RICHARD CARLTON: Why do you impose this condition Sir?

GEORGE PELL: Because many of them don’t want to be subjected to publicity and of course it’s shameful for the Church.

As Broken Rites’ researcher, Chris McIsaac, noted on the same programme: “The clause in the contract is ambiguous and most feel that in accepting and signing on the dotted line that they have to remain silent about anything that was told and spoken about within the process of going to the Commissioner and to the panel of the Pell process.”

Cardinal Pell has changed his stance a little since then. Now, he is apparently against enforcing the agreements, but he still confuses the matter. It was widely reported that he would free people from the agreements. However, he later admitted that he can’t make anyone else tear up the agreements. As he frequently points out, he is not the head of the Catholic Church in Australia. He is merely the most senior clergyman.

Sydney QC, John McCarthy, speaking on behalf of Pell, admitted that some bishops were still including secrecy clauses in compensation settlements to victims of sex abuse by church employees. Mr McCarthy confessed he was not aware of any communication between church authorities and independent lawyers engaged by dioceses to write deeds of release, which might have informed them of changes made in 2000 to the Towards Healing protocol (see ref. 10, below)

The CEO of the Catholic Church’s PR Unit (set up to deal with the fall-out from the Royal Commission), Francis Sullivan (see previous posting), was also clear as mud about the issue (see ref. 2, below). He stated that: “Our principal position in this is that where confidentially clauses need to be waived, they will be waived.” The key word is “need” given that he was referring to possible requests by the Royal Commission for detail of agreements. Specifically, he said that “It will apply to all instances in which the Royal Commission seeks information on.” This is irrelevant given that the Royal Commission has the power to demand the documents.

Poor Mr. Sullivan appears to have been kept out of the loop, just like the poor Mr. Elliot (see previous posting). When asked if he knew how many confidentiality agreements the Catholic Church has struck with victims, he relied that “No, I have no idea at the moment” and “I am not aware of any of the past activities”.